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SCOTUS: The military controls all of the property within the boundaries of a military installation

United States v. Apel, USSC 12-1038, 2/26/14

United States Supreme Court decisionvacating and remanding United States v. Apel, 676 F.3d 1202 (9th Cir. 2012).

Federal law makes it a crime to reenter a “military . . . installation” after having been ordered not to do so “by any officer or person in command.” 18 U.S.C. § 1382A unanimous Court holds that the boundaries of the military installation covered by this prohibition include even a designated area for public protests and an easement for a public road through the installation:

Where a place with a defined boundary is under the administration of a military department, the limits of the “military installation” for purposes of § 1382 are coterminous with the commanding officer’s area of responsibility. Those limits do not change when the commander invites the public to use a portion of the base for a road, a school, a bus stop, or a protest area, especially when the commander reserves authority to protect military property by, among other things, excluding vandals and trespassers. (Slip op. at 13).

Vandenberg Air Force base is a “closed base,” meaning it can’t be entered without express permission. (Slip op. at 1). The government has, however, designated a public protest site just outside the main entrance. (Slip op. at 3). Apel, a frequent anti-war protester at the site, was subject to two orders barring him from the base–one for an act of vandalism (throwing blood on a sign for the base) and the second for ignoring the first barment order. (Slip op. at 4-5). After he continued to appear at the designated protest site despite the barment orders he was charged under § 1382, convicted, and fined. (Slip op. at 5). The Court rejects his argument that the statute covers only property that is under the exclusive control of the military, and so cannot cover the public protest area or the public highway that goes through the base (and adjacent to which the protest area is situated). The fact a highway and protest area lie outside the entrance to the military installation and that they are “uncontrolled” spaces where no military operations are performed does not matter: “We think a much better reading of § 1382 is that it reaches all property within the defined boundaries of a military place that is under the command of a military officer.” (Slip op. at 12-13).

The Court did not uphold his conviction for entering base property without permission, because Apel also made a First Amendment challenge to the law as it was used against him. Because the court of appeals didn’t reach that argument, the case is remanded for it to do so. (Slip op. at 13).

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